Leshey v. Gardner

[318] The opinion of the Court was delivered by Rogers, J. — Joseph O’Brien and others obtained judgment against Jacob Leshey, one of the defendants. A fi-fa. was issued, the property in dispute levied on and condemned, and a venditioni issued and put in the hands of the sheriff. On this writ the property was sold, and the purchaser (the plaintiff’s testator) paid the purchase money; which was regularly applied to the payment of the defendant’s debts. The writ was not returned; but after the return day, viz. on the 10th of November 1836, A. Klinefelter, the then sheriff, (the former sheriff’s term having expired before the sale), executed and acknowledged in due form a deed to the purchaser, reciting a fi. fa., inquisition and condemnation by the former sheriff, Adam Eichelberger, “ that by a writ of venditioni the said sheriff, &c. was commanded to expose the premises to sale, and that the said sheriff returned that he had sold the said property to John Gardner.” After the execution of the deed, as above stated, Jacob Leshey, one of the defendants, took a lease of the premises from the purchaser. The defence is, that the sale is void, and that the property was purchased in trust for the former owner, and with the intent to defraud creditors. It is alleged that the sale was made by a sheriff not then in office, and, being void, the sheriff had no authority to execute the deed, and that consequently no title passes to the purchaser. It would seem, from the recital, that the sale was made by Eichelberger, and that it took place after he was out of office; but as it is clear that the recital in a sheriff’s deed is not conclusive evidence of the facts stated in it, the plaintiff was properly permitted by the court to give evidence that the sheriff then in commission was present, and that in truth the sale was conducted under his auspices and by his authority. After the parol evidence was received, the court instructed the jury, that unless the sale was made by the sheriff then in office, the sale was void; and this was an instruction as favourable as the defendants had any right to ask; for on this the plaintiff’s recovery, as the court clearly intimate, depends. But if, on the contrary, the sale was made by the then sheriff, the only thing amiss was, that the process was not actually in his hands, with the further objection that the writ wTas not returned. ■ The writ of venditioni is directed to the sheriff of the county, not to any particular person, and therefore it is the duty of the new sheriff to execute all writs not executed by his predecessor. Thus, in this case, it was the duty of the new sheriff to make the sale, and to make return of his writ. In England, the old sheriff, to exonerate himself from all charge, is required by the statute 20 Oeo. II. c. 37, at the expiration of his office, to turn over to the succeeding sheriff, by indenture and schedule, all such writs and process as remain in his hands unexecuted, who shall duly execute [319] and return the same; and in case any sheriff neglect to turn over such process, he shall be liable to make satisfaction by damage and costs to the party aggrieved. We have no statute requiring this should be done in writing, and the practice is for the old sheriff to hand over the unexecuted process to his successor, whose duty it is to execute it. It would seem, that in England, until a writ of discharge is delivered to the old sheriff, he may lawfully exercise the duties of his office. But no such practice is known in this state, as the duties of the old sheriff cease, by tradition merely of the unexecuted process to his successor. The facts, as found by the jury, show an irregularity, at the most; and the court, I apprehend, on a proper application, would grant leave on the facts stated to return the writ nunc pro tunc. It is very unlike the principle ruled in Porter v. Neelan, (4 Yeates 108), and Glancey v. Jones, (4 Yeates 212), that a sheriff’s sale of land without a venditioni is invalid. These cases were decided on the words of the Act of 1705, which expressly directs, that on the condemnation of lands, a venditioni exponas shall issue. Without it, he has no power to sell whatever, and a sale without authority is void, and consequently gives no title. But here, the sheriff had authority to sell, and the only defect is, that the writ was not actually, although it was potentially in his hands. And executing the deed without returning the writ, although certainly irregular, does not make the title absolutely void. Considering the title voidable, but not void, if it appears (and the jury have so found) that the purchaser paid the consideration money, and the debtor accepted a lease for the premises, the latter is estopped, and cannot in this action rely on any irregularity which attended the sale. It is ■against equity, even if the sale was void, that the debtor should keep the land and the money, as is shown in Moody v. Vandyke, (4 Binn. 40). The same principle applies to the other defendant, if, as was the case, the father permitted him to come into possession under him. The writ of venditioni offered in evidence, being between other parties, was wholly irrelevant to the issue; nor do we perceive any error in rejecting the deposition of Lewis C. Leshey; for, ■ admitting the truth of the very improbable story contained in his deposition, it proves nothing, which, in any view of the case, can avail the defendants. It is no evidence of a trust, because a trust, as to real estate, cannot be so proved, as is ruled in divers cases. Kisler v. Kisler, (2 Watts 323) ; Sidle v. Walters, (5 Watts 389), and Robertson v. Robertson, (9 Watts 35). So if there was a fraudulent combination between them to defraud creditors, it would not, as between the parties themselves, avoid the lease. Equity would not relieve a tenant, on proof of a combination to which he himself was a party, to cheat. There is nothing in the objection that the plaintiff parted with his title since the commencement of the suit. Although the sale [320] made by the executor, in pursuance of an order of the court, was confirmed, yet the title of the owner was not devested until a deed was made.to the purchaser. That a deed is required, appears pretty plain, from the Act of 1834; and besides, the purchaser is not bound to pay his money until the executor is in a condition to tender a deed. There is nothing in the Act which gives even colour to the idea that the confirmation of the sale transfers the title. Judgment affirmed.